“133 Compensation for miscarriages of justice. (1) Subject to subsection (2) below, when a person has been convicted of a criminal offence ICCPR, Article 14(6) contains the words “by a final decision”
“6. The Crown does have reservations in this case which they have raised directly with the appellant. 7. The appellant provided an unsigned statement dated29th January 2008 , indicating that the mobile phone upon which he had recorded “a” conversation had been given to Mrs Begum three week’s earlier. The appellant stated that this was a Sony Ericcson Z610 with the number 07882 928827, service provider 3G. 8. In an unsigned and undated statement provided on18th April 2008 , the appellant indicated that his wife would phone from a withheld number or from 079332 92449; a number she no longer has. The appellant indicated that before giving his wife his handset, he made a download onto a Sony Ericsson K800i of “certain” of these conversations. 9. In an unsigned statement dated1st July 2008 , the appellant repeated his assertion that he had recorded the relevant conversation on this phone, which he had later given to Mrs Begum. The appellant gave a new number, which he stated he had used and indicated that his wife’s number was a Pay As You Go number. 10. The appellant in an unsigned statement dated30th July 2008 , referred to 11 calls made to Mrs Begum from number 07888 761091 and produced billing records for this new number. He indicated that during the 11 calls he made a recording on his Sony Ericcson 800i which is still in his possession. He has edited these recordings. 11. In short, the appellant has given conflicting accounts of numbers used, the number of phone calls made and the handsets upon which the recording was made. We have had no explanation for the conflict nor can confirm that there is no relevant material on the unedited recordings.”
“ … it has not been suggested that [the claimant’s] description of the process by which he recorded those conversations and later transferred them into a digital form on a portable disk was inherently implausible or can be shown to be false. [Crown counsel] has also confirmed that the telephone on which those recordings are said to have been made is available and could be produced in evidence if necessary.”
“The technical quality of the telephone recording was fairly good for material of this kind. It contained an extensive sample of speech from the person in question.”
“The reference recording, however, provided a poor basis for the comparison. Ms Begum alternated between speaking in Sylheti, Standard Bengali and English. Only the Sylheti material could be used in the analysis, as cross-language comparisons are not considered reliable. The Sylheti material amounted to some 1 minute and 8 seconds. The quality of the recording was poor. The signal to noise ratio was low. It was contaminated by extraneous noise and Ms Begum’s speech was quiet owing to there being some distance between her and the microphone. Of the 1 minute and 8 seconds only 18 seconds was of sufficient quality to allow for basic acoustic testing. This is a very slender and restricted reference sample capable of supporting only a weak conclusion.”
“The Crown concedes that the court would be entitled to infer that Mrs Begum is avoiding contact.”
“In terms of the restricted set of features present in the reference sample for comparison I have found no differences between the recordings of a kind that would cause me to argue that the women in the telephone call is not Ripa Begum. On the contrary, the voice and speech patterns are consistent with those of Ms Begum in all available significant phonetic, acoustic and linguistic respects.”
“In the present case, owing to the lack of published information concerning prevailing norms of pronunciation and prosody for Sylheti, coupled with the limited nature of the reference material, I would not consider it reliable to evaluate the distinctiveness of the features common to the samples.”
“(i) Although it was not part of my instructions in this case, I nevertheless thought it might be helpful to the court if Dr Hamid and I were to sample the conversation at various points for any evidence of play-acting. The reasoning behind this was that, if the speaker was not Ripa Begum, it would have to be an impostor acting out her part for the purposes of manufacturing evidence. The dialogue has all the hallmarks of naturally-occurring conversation – namely, hesitations, interruptions (of self and other), false starts, repetitions and overlapping speech. (ii) It might also be of relevance in assessing whether the conversations were play-acted for the court to take into account that the conversation Dr Hamid and I examined was 37 minutes in duration. The total duration of the calls is over 3 hours. The court might wish to consider whether it would be feasible for someone to play-act for this length of time.”
“22. … [E]ven allowing for the unsatisfactory aspects of the applicant’s account, what we have here are recordings of statements made by a woman purporting to be the complainant, in a dialect of Bengali known to be used by the complainant, a voice whose speech characteristics are consistent with those of the complainant, who, moreover, appears to have been engaged in normal conversation in the course of which she discussed (sic) with apparent familiarity the circumstances in which she suffered injury and admits that the injuries were self-inflicted. 23. In our view, the applicant’s evidence that the recordings are a true record of conversations between himself and the complainant is capable of belief, and, if believed, would significantly undermine the evidence given by the complainant against him. That, in our view, is sufficient to render the applicant’s conviction unsafe. We therefore give leave to appeal and quash the conviction.”
“She confirmed it was not her voice on the recording produced by the Applicant.”
“The Crown acknowledged that Ripa Begum was the key witness and her credibility was the key issue at trial. As she could not be located then, notwithstanding the manner in which the recordings were made, the Crown conceded that it was in difficulty resisting Mr Ali’s appeal. The Crown conceded that the court would be able to infer that Ripa Begum was avoiding contact. …….The Crown was not in a position to and did not accept that Ripa Begum was the female who was recorded in conversation with Mr Ali as she had provided a statement to the police in March 2008 denying that it was her voice on the recording.”
“It was by no means certain that Ripa Begum’s original account was not true or indeed that she was the female participant in the recorded conversations. Furthermore, the Court of Appeal made no such recommendation. [to mount an investigation] No action, therefore, was ever taken in respect of the allegations raised by Mr Ali in his appeal.”
“Your client’s case does not fall within the circumstances identified by the Court. There is no indication in the Court’s judgment that the new fact demonstrated that there was insufficient evidence upon which the court could convict. There remained questions about the recordings. Professor French was only capable of “supporting a weak conclusion” that the recordings were of conversations with the complainant (paragraph 20). The Court also referred to the “unsatisfactory aspects of the applicant’s account” of the circumstances in which the conversations were said to have taken place (paragraph 22). The Court of Appeal merely found that the new evidence was “capable of belief” and “if believed, would significantly undermine the evidence”
“The short but difficult question which I have had to consider is whether, on the evidence before the jury, they would be entitled to infer, as against any of the three defendants on whose behalf submissions have been made, that that defendant knew of the existence of a knife in the possession of one of his colleagues and realised that that knife might be used in the course of the attack with the intention of causing death or really serious injury.”
“57. We do not consider that it is for us now to decide that there is no case to answer, because we are satisfied that on an analysis of the evidence before us on paper, there is sufficient for us to order a retrial, taking into the account the circumstances, particularly the age of the case, to which we have referred. We have already observed that the Crown must, within a period we shall hear counsel on, set out the evidence upon which it is now able to rely. We have also taken into account that in this case, as is apparent from the ruling of the learned judge, much will depend upon the trial judge’s assessment of the quality of the identification evidence. 58. In those circumstances we consider that the just and proper course is to order a retrial, but wish to make it clear that first of all rearraignment must take place within as short a time as possible. We will hear counsel on that in a moment. Secondly that the Crown must provide a new outline of its case, together with the evidence that it is now able to call in support of it in the near future. As Mr Leonard, on behalf of the Crown, has very properly acknowledged, the Crown will keep under careful review, in the light of the evidence that it knows it is able to call, its duties in respect to the prosecution of this case. We would also wish this matter to be heard as soon as possible. 59. In saying what we have said, it will obviously be for those representing the defendants at any appropriate stage, when Crown’s case becomes clear, to make any applications they consider right. But on our analysis of the evidence, we consider that, on what we have been told, and what we see, there is sufficient evidence in which it would be just and in the interest of justice that there should be a full retrial on count 1.”
“The Court of Appeal never addressed their mind to the secondary point as to whether in fact putting aside the evidence or the non-evidence of the possession of a knife [by] Williams, whether there was a case to answer in respect of the other three. It was left very much to be sorted out in the retrial … and no one disputes it is fair that there was a sufficient case for the court to order a retrial.”
“… since the case of Adams was handed down by the Supreme Court … the situation has changed … in our view the judicial interpretation of section 133 of the Act is now such that Mr Dennis clearly satisfies the requirements.”
“… if the claimant’s application were to be reconsidered.”
“to the extent that no jury could possibly convict the claimant of the offence of murder with which he was originally charged.”
“In reaching this view, I have not applied technical rules of evidence of the type that were applied by the trial judge at the retrial which clearly could have affected his decision in concluding there was an insufficient case to answer.”
“but that was not based upon any new or newly discovered evidence not known to the Court of Appeal.”
“I also note that the judge at the retrial concluded that there was evidence on which a jury properly directed could be sure on the evidence, if they so decided, that the claimant was implicated in the attack on Mr Oba and I have already referred to the fact that the claimant’s conviction for violent affray remained.”
“I also note that there was evidence that after the group of which the claimant was part were ejected from the club, one member called out “get the gun, get the gun” and Karl Dennis returned to the club with a firearm which was fired in the air. Karl Dennis and Mr Mehta were convicted of possession of a firearm with intent to endanger life in respect of this incident. It seems to me that this evidence taken with the other remaining evidence was potentially capable of resulting in a conviction of the claimant for murder, notwithstanding that the trial judge himself concluded that that evidence should not be led before the jury at the retrial.”
“The trial judge’s ruling at the retrial was based upon technical rules of evidence which the Secretary of State is not required to apply to his own consideration of the test under Category 2 (for the reasons explained by Lord Phillips at paragraph 52 in the Adams judgment.”
“If those facts relate to the alleged crime in question, in contrast to facts which relate to events that post-date the crime in question such as a later unconnected criminal convictions of a witness.”
“At trial the prosecution relied primarily on four categories of evidence. First, there was evidence which identified Barry George as being at the scene of the murder some four hours before it was committed and other evidence which, although not leading to a positive identification, was said to demonstrate such features as similarity to the positive identification as justified the conclusion that he was present at about the time it was committed. Secondly, the prosecution characterised his interview as containing repeated lies, in particular, as to his knowledge of an interest in Miss Dando. Third, it was alleged that he had made considerable attempts to create a false alibi for the time of the shooting. Finally, the Crown relied on the similarity of the FDR found at the scene of the crime with Miss Dando’s wound and the single particle of FDR in the pocket of Barry George’s coat.”
“That evidence conveyed the impression that the Crown’s scientists considered that innocent contamination was unlikely and that, effectively in consequence, it was likely that the source of the single particle was the gun that killed Miss Dando. In that respect their evidence at the trial was in marked conflict with the evidence that they have given to this court with the result that the jury did not have the benefit of a direction that the possibility that the FDR had come from a gun that killed Miss Dando was equally as remote as all other possibilities and thus, on its own, entirely inconclusive. In the light of the way in which Mr Keeley now puts the matter we have no doubt that the jury were misled upon this issue.”
“We can deal with this issue shortly. The FDR evidence was not the foundation of the prosecution’s case against the appellant. Without pre-judging what might follow, in the absence of the FDR evidence there was circumstantial evidence capable of implicating the appellant; that much is clear from the detailed consideration given to the other aspects of the case by the Court of Appeal hearing the first appeal. [Counsel for the claimant] has accepted that proposition by conceding that, if this appeal succeeds, there should be a re-trial. We have to decide whether, had the evidence that we have heard been adduced at the trial, this might reasonably have affected the decision of the jury to convict …”
“Although the proposed claimant was acquitted at his retrial, this was by the jury’s verdict. It is clear that there was evidence on which a jury, properly directed, could have convicted the proposed claimant. Nothing emerged during the course of the retrial to demonstrate that the proposed claimant was clearly innocent of the offence.”
“Nevertheless, there remained evidence on which a reasonable jury, properly directed, could have convicted your client; the retrial proceeded beyond “half time” and your client was ultimately acquitted by a considered verdict. In those circumstances, it is clear that the new or newly discovered facts in your client’s case did not so undermine the evidence against him that “no conviction could possibly be based upon it”
“When the second jury retired, did the Crown have a case on which a reasonable jury (properly directed) could have convicted the claimant for murdering Miss Dando?”
“that no [proper] conviction could possibly be based upon it.”
“new facts emerge during the retrial process that have the effect of showing conclusively that the person was innocent or that the prosecution should never have been brought they can be taken into account, even though they emerged after the date when the conviction was reversed by the Court of Appeal.”
“It was clear on the evidence at trial that the appellant was prone to make up stories in order to gain attention. The issue for the jury was whether the admissions made with respect to the murder were examples of that behaviour or were true confessions to actual participation in the offence by the appellant. The jury were directed in clear and correct terms on that issue by the trial judge.”
“The psychological assessment shows that Mr Lawless suffers with a pathological need for attention. His test-taking attitude showed a tendency of over-reporting psychopathology, which appears to be a ‘cry for help’ and resulted in some of the tests being rendered invalid. However, the valid assessment results show that Mr Lawless presents with severe psychopathology, including personality disorders. Mr Lawless’ psychological difficulties appear to be very likely long-standing and were probably already present at the time of his arrest and conviction. However, in the absence of a psychological assessment, conducted at that time, this cannot be concluded with certainty. It has been shown that Mr Lawless’ pathological need for attention is also evident in the information given by Mr Lawless during the psychological interviews as well as the case documentation, particularly the witness statements. Mr Lawless’ coping strategies, alcoholism and general lifestyle suggest that significant psychological difficulties and his need for attention were already present before the time of his arrest. It was concluded that Mr Lawless’ alleged admissions could be false admissions as his psychological difficulties and need for attention might render him vulnerable to making false confessions. In view of this it is deemed unsafe to rely on his alleged self-incriminating admissions as sole proof for his involvement in the murder of Mr Wilkins.”
“We are … satisfied that if the jury had heard that evidence at trial it might have affected their assessment of the reliability of the various confessions made by the appellant and their verdict might have been different. We note in particular, since this was a feature of [R –v- Flanagan[2005] EWCA Crim 2286 ] … that both psychologists are evidently of the view that the psychological conditions described by them are conditions from which the appellant suffered (or probably suffered) at the time when the confessions in question were made. We have also borne in mind that the verdict in relation to the appellant was reached by a majority of 10:2, and only after a very long period of deliberation.”
“The Justice Secretary has carefully considered papers in your client’s case, but has concluded that this test has not been met. In its judgment quashing your client’s conviction, the Court of Appeal stated that it was “satisfied that if the jury had heard the evidence at trial it might have affected their assessment of the reliability of the various confessions made by the Appellant and their verdict might have been different” (paragraph 35). The Court did not provide any indication that the new medical evidence obtained by the CCRC proved clear innocence, only that the jury might have acquitted. There was no finding by the Court that the new medical evidence had made the confession evidence clearly untrue; rather that a jury might have been more likely to disbelieve it. The Justice Secretary is not therefore of the opinion that your client’s conviction was reversed on the ground that a new or nearly discovered fact showed beyond reasonable doubt that there has been a miscarriage of justice, as required bysection 133 of the Criminal Justice Act 1988 , and he is not prepared to authorise an award of compensation.”
“That said, his confession to a number of prosecution witnesses was almost the only evidence against Mr Lawless, and thus if a jury had not believed the confession evidence it follows thatthey would have acquitted [emphasis added]. The CPS did not oppose the appeal and did not seek a retrial. The CPS advised there were two reasons for not seeking a retrial – firstly, the length of the sentence served (almost 7½ years), and secondly that the confession evidence was rendered “unreliable” by the new expert evidence and that accordingly “there would be nothing further to put to a jury in any retrial”
“However, the test remains a demanding one: where the new or newly discovered fact which formed the basis of the reversal of the Applicant’s conviction does not show beyond reasonable doubt that he was innocent of the offence of which he was convicted, compensation is payable only if that fact so undermines the evidence against him that it is beyond reasonable doubt that no conviction could possibly be based upon it. The Justice Secretary maintains that your client’s case does not fall within the circumstances identified by the court. Whilst there was new psychological evidence, and the impact that such evidence might have had on the jury’s verdict had it been available at the time was considered by the Court of Appeal, it remained that your client might nevertheless have been properly convicted … There was no finding by the Court of Appeal that the new psychological evidence had made the confession evidence clearly untrue, rather that a jury might have been more likely to disbelieve it.”
“There was no finding by the Court of Appeal that the new psychological evidence had made the confession evidence clearly untrue, rather that a jury might have been more likely to disbelieve it.”
“Miss G, according to her evidence, said that she thought he was a “bit flash”
“15. We have unhesitatingly come to the conclusion that Miss G’s evidence is capable of belief. It would have been admissible. Had that statement been made to Miss G before the trial, it could have been put before the jury and it would clearly have been capable of having had an effect on the verdict. The question is, ultimately, accordingly, whether these verdicts were safe bearing in mind our views about the evidence of Miss G 16. … 17. We have unhesitatingly come to the conclusion that it was evidence which could well have affected the verdicts that the jury brought in. It seems to us therefore, in relation to both ways in which we have to test fresh evidence such as this, the evidence is such as to lead to the conclusion that these verdicts were unsafe, and, whatever may be the truth of the matter in relation to the events in 1995, we must accordingly quash these convictions.”
“Section 133(1) provides that compensation shall be paid where a conviction has been “reversed …on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice …unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.”
“Your client has already made an application for such compensation, which was refused by the Justice Secretary on17 October 2008 .Section 133 of the 1988 Act does not provide for a second or subsequent application for compensation to be made. Therefore your client appears to be requesting that the Justice Secretary reconsider his decision to refuse your client’s original application for compensation. The statutory test for entitlement to compensation was and remains that set out insection 133 of the Criminal Justice Act 1988 . Although the Supreme Court in Adams has now definitively decided the correct interpretation of the term “miscarriage of justice” in that section, the alternative possibilities which the Supreme Court was being asked to consider have been the subject of argument in the High Court and the Court of Appeal for some years. You brought judicial review proceedings, on behalf of your client, in January 2009. Permission was refused by the Court on24 March 2009 . The claim was renewed by your client and at a subsequent hearing on9 June 2009 , the judge refused to grant permission having concluded that the Justice Secretary had made the correct decision in this matter. Therefore the Justice Secretary has declined to reconsider your client’s case.”
“it is evident that the questions envisaged repeat applications relating to the same conviction, and that newinformation might affect the earlier decision. This is strongly indicative of the fact that repeat applications are permitted, envisaged and planned for within the application system. There is nothing prohibiting the Justice Secretary from reconsidering applications if there is a relevant development which may impact on the likelihood of a previously rejected application being eligible for compensation. Parliament has clearly decided, by virtue of the 1988 Act, not to exclude such a possibility. On the contrary, had Parliament wished to exclude the reconsideration of a repeat application from the ambit of the statutory scheme, it would have expressly legislated for this.”
“7. The Justice Secretary is not aware of any new or newly discovered fact which has arisen subsequent to his decision to reject your client’s application in October 2008. Your submission that the Adams judgment itself amounts to a “material change in circumstances” justifying the re-consideration of your client’s application is not accepted. The Adams judgment cannot reasonably be said to constitute a new fact justifying either the consideration of a further application or the re-consideration of the original. 8. We note that you do not suggest that the facts upon which the Minister refused compensation to your client in October 2008 would meet the demanding test as set out in Adams, namely that the evidence against him was so undermined that no conviction could possibly be based upon it. 9. As there are no new facts that the Justice Secretary has not considered, there is no rational basis for re-considering your client’s application or for considering a fresh application. It is denied that this approach is either irrational or amounts to a “blanket policy”, as it is entirely logical and does not necessarily apply to all repeat applications e.g. second applications requiring new facts to be considered which were not subject to the first application. This is reflected in the application form (to which you refer in your letter), which specifically invites the applicant to specify any new information which might affect the earlier decision. Therefore, as there is no blanket policy, it is denied that the Justice Secretary has fettered his discretion. 10. We note that your client brought judicial review proceedings in January 2009 following the Justice Secretary’s decision to refuse his application in October 2008. The court refused to grant permission in March 2009 and again at a subsequent hearing in June 2009. The present claim appears to be a misguided attempt to open up those proceedings or circumvent the limitation period following the refusal in October 2009. On your analysis, subject to a convenient change in the law, claimants would forever have the opportunity to bring a claim, potentially decades after the event, notwithstanding the relevant limitation provisions. This would promote a lack of certainty in the legal process and would be manifestly unfair on Defendants. In any event, as submitted above, it is not accepted that the Adams judgment requires the Justice Secretary to re-consider your client’s application.”
“… to decide whether or not to reopen cases which they think, in the light of the House of Lords judgment, they may have wrongly refused a student a mandatory award by applying an incorrect [legal test] the department suggested to the local authorities that the guiding principles should be the requirement of good public administration and the desirability of reviewing cases where the courts would be likely to grant leave for an application for judicial review without forcing the student first to have recourse to the courts.”